61 F.3d 588 (8th Cir. 1995), 94-1844, Wiehoff v. GTE Directories Corp.

Docket Nº:94-1844, 94-1979.
Citation:61 F.3d 588
Party Name:James W. WIEHOFF, Appellant/Cross-Appellee, v. GTE DIRECTORIES CORP.; GTE Directories Sales Corp.; GTE Directories Service Corporation, doing business as GTE Sun Community Directories, Appellees/Cross-Appellants.
Case Date:July 25, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 588

61 F.3d 588 (8th Cir. 1995)

James W. WIEHOFF, Appellant/Cross-Appellee,

v.

GTE DIRECTORIES CORP.; GTE Directories Sales Corp.; GTE

Directories Service Corporation, doing business as

GTE Sun Community Directories,

Appellees/Cross-Appellants.

Nos. 94-1844, 94-1979.

United States Court of Appeals, Eighth Circuit

July 25, 1995

Submitted Nov. 16, 1994.

Suggestion for Rehearing En Banc Denied Sept. 7, 1995.

Order Denying Rehearing by Panel Sept. 28, 1995.

Page 589

Joseph Walter Hammell, Minneapolis, MN, argued (Catherine R. Landman and Paul J. Robbenolt, on the brief), for appellant.

John W. Polley, Minneapolis, MN, argued (Patricia K. Oakes, on the brief), for appellees.

Page 590

Before BEAM, Circuit Judge, CAMPBELL [*] and JOHN R. GIBSON, Senior Circuit Judges.

JOHN R. GIBSON, Senior Circuit Judge.

The principal issue in this case is whether establishing a willful violation of the Age Discrimination in Employment Act necessarily establishes a basic, non-willful violation of the Act. James W. Wiehoff appeals from the district court's judgment dismissing his age discrimination claim because the evidence showed a willful violation of the ADEA, which was barred by the statute of limitations. Wiehoff argues that proof of a willful violation necessarily includes proof of a basic violation, and, thus, the court erred in dismissing his ADEA claim. He also argues the court erred in: (1) refusing to toll the statute of limitations for the time the Minnesota Department of Human Rights attempted to conciliate his claims; and (2) ruling on the admissibility of evidence. We affirm in part, reverse in part, and remand for trial.

In 1981, Wiehoff began working as a sales representative for Sun Community Directories, selling advertising space in community yellow page directories. In 1987, GTE Directories Corporation purchased Sun. In January 1988, GTE hired a new manager who reassigned accounts and territories and restructured performance standards. Shortly thereafter, Wiehoff received a warning letter outlining his production and organizational problems. Problems remained. Wiehoff was placed on probation, then demoted to telephone sales. GTE also placed him on probation in that department and, in August 1988, fired Wiehoff, then aged sixty-two.

On December 8, 1988, Wiehoff filed a charge of age discrimination and retaliation with the Minnesota Department of Human Rights. The Department cross-filed the charge with the Equal Employment Opportunity Commission, and the EEOC informed the parties that the Department would process the charge pursuant to a worksharing agreement between the two agencies. On June 29, 1989, the Department notified Wiehoff that probable cause existed that GTE had committed an unfair discriminatory practice. The Department asked GTE and Wiehoff to participate in conciliation to try to informally eliminate the discriminatory practice. The parties unsuccessfully attempted to conciliate, and on December 7, 1989, Wiehoff received a letter from the Department notifying him that conciliation efforts were unsuccessful. 1

Congress amended the Age Discrimination Claims Assistance Act in 1990. This statute restored some claims under the ADEA which were lost due to delays in investigations conducted by the EEOC or state agencies. 2 On December 7, 1990, the EEOC sent a letter to Wiehoff advising him that, because of the ADCAA, he "may now have extended time to sue under the ADEA so long as your lawsuit is filed by January 26, 1992." In an accompanying Fact Sheet, the EEOC explained the ADCAA requirements and cautioned that "[a]llegations of willful violations should be filed within the three year limitations period where such period has not yet expired even though the ADCAA notice may indicate a later filing date is possible."

In a June 21, 1991, letter, the EEOC informed Wiehoff that it terminated processing of his age discrimination charge. The letter stated that an employee must sue within two years of the date of discrimination, extended to three years in cases of willful violations. According to the letter, the EEOC understood that Wiehoff alleged a basic violation which lapsed on August 26, 1990, but that the EEOC previously had informed Wiehoff that the ADCAA extended his time to sue until January 26, 1992.

On November 8, 1991, Wiehoff sued GTE asserting claims of age discrimination and retaliation under the Minnesota Human Rights Act, Minn.Stat. Secs. 363.01-15 (1994),

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and the Age Discrimination in Employment Act. GTE moved for partial summary judgment, arguing that the statute of limitations barred Wiehoff's age and retaliation claims. The district court granted GTE's motion in part. Wiehoff v. GTE Directories Corp., 851 F.Supp. 1312 (D.Minn.1993). The court held that the applicable statutes of limitations were two years for basic violations of the ADEA, and three years for willful violations. Id. at 1316. The court held that Wiehoff's claims of a willful and basic violation of the ADEA would ordinarily be time-barred, but that the ADCAA extended the statute of limitations for the basic violation. Id. at 1317-18. The court entered partial summary judgment for GTE on Wiehoff's willful violation, and the case went to trial.

After a two-week jury trial, GTE moved for judgment as a matter of law on all of Wiehoff's claims. The court granted GTE's motion on Wiehoff's reprisal claim, but denied it on Wiehoff's discrimination claim. Following three days of deliberations, the jury declared that it was deadlocked, and the court declared a mistrial.

The Minnesota Human Rights Act requires the judge to determine violations of the state statute, Minn.Stat. Sec. 363.14, subd. 2, and so, Wiehoff asked the court to decide his state-law claims. 3 GTE concurred in the request, and renewed its motion for judgment as a matter of law on Wiehoff's remaining age discrimination claims arguing that: (1) Wiehoff's evidence only supported a willful violation barred by the statute of limitations; and (2) insufficient evidence existed to allow a jury to find age discrimination. The court granted GTE's motion in part, ruling that Wiehoff's evidence, if believed, showed only a willful violation of the ADEA, and thus, Wiehoff's age claim was time barred. Wiehoff v. GTE Directories Corp., 851 F.Supp. 1322, 1328 (D.Minn.1993). The court did not decide whether Wiehoff presented sufficient evidence to allow a reasonable jury to conclude that age was a determining factor in GTE's decisions to demote and fire Wiehoff. Id. at 1328, n. 11. After further briefing by the parties, the court dismissed Wiehoff's state law age claim. Wiehoff v. GTE Directories Corp., 851 F.Supp. 1329 (D.Minn.1994). Considering the evidence from trial, the court determined that although Wiehoff established a prima facie case of age discrimination, he failed to meet his burden of proving that age played a part in GTE's transferring and firing decisions and so, did not establish a violation of the Minnesota Act. Id. at 1343.

Wiehoff appeals, arguing the district court erred in: (1) granting judgment as a matter of law on Wiehoff's ADEA and retaliation claims; and (2) ruling that Wiehoff's willful ADEA claim was time barred. He also challenges several of the district court's evidentiary rulings. GTE cross-appeals, arguing the district court erred in concluding that Wiehoff established a prima facie case of age discrimination.

I.

Wiehoff argues the district court erred in granting judgment as a matter of law on his ADEA claim. He contends that the district court incorrectly reasoned that a jury could only find that GTE "willfully" violated the ADEA, and that such a violation of the ADEA was time barred.

We review a judgment entered as a matter of law de novo, using the same standard as the district court. Paul v. Farmland Indus., Inc., 37 F.3d 1274, 1275-76 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1360, 131 L.Ed.2d 217 (1995). We consider the evidence and its reasonable inferences in the light most favorable to Wiehoff. Id. To the extent this appeal involves the application of Minnesota law, we review the district court's interpretation of state law de novo, giving it no deference. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1220, 113 L.Ed.2d 190 (1991).

Section 626(e) of the ADEA incorporates the limitations period set forth in Section 255(a) of the Portal-to-Portal Pay Act. 29 U.S.C. Sec. 626(e)(1) (1988); 29 U.S.C. Sec. 255(a) (1988). 4 In general, an employee must file

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suit within two years after receiving notice of adverse discriminatory action. 29 U.S.C. Sec. 255(a); Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 288 (8th Cir.1988) (cause of action accrues when plaintiff has notice of employer's termination decision). If a cause of action arises from a willful violation of the ADEA, however, the employee has three years to file suit. 29 U.S.C. Sec. 255(a). Wiehoff concedes his cause of action accrued on August 22, 1988, when GTE notified him of his termination. Thus, ordinarily, Wiehoff would have had until August 22, 1990, to file his claim for a basic violation, and until August 22, 1991, to file his claim for a willful violation.

The Age Discrimination Claims Assistance Act, as amended, however, grants a 450-day extension to file suit if the following conditions are met: (1) the employee filed a timely charge with the EEOC after April 6, 1985; (2) the EEOC did not eliminate the unlawful practice by conciliation or notify the claimant in writing of the disposition of the charge and of the right to bring a civil suit before the applicable statute of limitations expired; (3) the applicable statute of limitations ran after April 6, 1988, but before May 2, 1991; and (4)...

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